chevron-down Created with Sketch Beta.

ARTICLE

Summary Judgment: How to Get It and How to Beat It

Roger Slade

Summary

  • There are certain cases that do not lend themselves to summary judgment.
  • Partial summary judgment is a terrific way to narrow the issues in a case before trial.
  • Before a court will grant summary judgment, you must be able to submit factual evidence in admissible form.
  • One rule of thumb when it comes to summary judgment is, “The thicker the motion, the more likely it is to be denied.”
Summary Judgment: How to Get It and How to Beat It
RichLegg via Getty Images

Practicing lawyers do not always understand what summary judgment is and how to win on a summary judgment motion. In some courts, obtaining summary judgment is difficult, if not impossible. Other courts love summary judgment and use it as a mechanism to reduce their caseloads. This article will provide some tips about how to obtain summary judgment, as well as how to avoid having such a motion granted against your client.

Where Summary Judgment Works and Where It Does Not
There are certain cases that do not lend themselves to summary judgment. Examples of such cases include the typical negligence case, medical malpractice cases, and cases involving the interpretation of a contract where oral testimony is required to address an ambiguity in the contract. Judges are reluctant to grant summary judgment in these types of cases because of the likelihood of reversal. Remember that state and federal trial judges have someone looking over their shoulders at all times, namely, state and federal appellate courts. Accordingly, judges carefully scrutinize whether the case at issue is appropriate for summary judgment.

Cases in which you are more likely to receive summary judgment include uncontested foreclosure cases, cases involving the interpretation of a contract that is unambiguous, garden-variety business disputes, and collection matters. Summary judgment in these types of cases is more often granted because the court perceives that one party would be unable to present any material facts at trial that would result in a different outcome than that provided in the court’s summary judgment decision. 

Partial Summary Judgment
Partial summary judgment is a terrific way to narrow the issues in a case before trial. For instance, in cases where the defense pleads many affirmative defenses to the claims at issue, the plaintiff would be well advised to make an effort to “summary out” some of the affirmative defenses in order to narrow the issues before trial. If successful at this, the plaintiff’s counsel will be able to streamline the case, eliminate the testimony of otherwise irrelevant witnesses, and save the client money.

Evidence on Summary Judgment
Before a court will grant summary judgment, you must be able to submit factual evidence in admissible form. This means that you must submit relevant and admissible documents, sworn statements, and/or deposition transcript excerpts to support your motion. If you do not provide this type of information, your adversary will be able to legitimately claim that your motion is unsupported or based on hearsay. Thus, the party moving for summary judgment must carefully document all of the facts that support the motion.

It is important to remember that lawyers cannot testify and that what the lawyer says during the summary judgment argument is not evidence on which the judge can rely to render a judgment.

Keep It Simple
One rule of thumb when it comes to summary judgment is, “The thicker the motion, the more likely it is to be denied.” In order to grant summary judgment, the typical trial court judge wants to be able to quickly understand the facts and see that those facts are supported by relevant documents, affidavits, or testimony. If the package that you submit to the court is three feet thick, there is a greater likelihood that your motion will be denied. Imagine that you are a judge with 5,000 cases and a lawyer submits to you 2,000 pages of reading material in connection with a summary judgment motion. Although some judges may take the time to review as much of the material as possible, it would certainly be easier for the court simply to deny the motion rather than read the voluminous record submitted with the motion.

And what is the effect of a denial of summary judgment? The impact will be that you will have to either settle the case or go to trial. In most circumstances, there is no interlocutory appeal; and, accordingly, the trial court’s decision will likely not be reviewed until after trial occurs and a final judgment is entered. Many lawyers and their clients, after losing summary judgment, are more likely to settle; and judges, aware of this reality, are less inclined to entertain lengthy motions. Thus, even if the motion is well supported by the evidence, counsel would do well to avoid submitting a mountain of paper with the motion and expecting the court to review it all.

Watch the Deadlines
Both state and federal courts set timelines for filing dispositive motions, and it is critical that attorneys be aware of those timelines.

For example, in Florida state court (where the author generally practices), the Florida Rules of Civil Procedure set out a series of deadlines for summary judgment practice. Generally, a party seeking summary judgment is required to give the nonmoving party at least 25 days’ notice prior to a hearing on the summary judgment motion. Fla. R. Civ. P. 1.510. Conversely, the nonmoving party must file its written opposition no later than either five days (if the response is served by mail) or two days (if the response is served by hand delivery or fax) prior to the hearing on the motion. The lesson here is simple: Counsel should have a clear understanding of when the hearing on summary judgment has been scheduled regardless of whether they are the moving party or the nonmoving party because deadlines apply on both sides. If a party misses the deadline by having its motion heard prematurely or by filing an opposition brief late, that party runs a greater risk of losing the motion.

Federal court deadlines often differ from state court practice and generally follow the local rules for the federal district court in which the motion is being heard. However, the local rules all usually require a briefing schedule set in connection with the filing of the motion and opposition and reply briefs. See, e.g., S.D. Fla. L.R. 7.1. The federal court briefing schedule is, generally, a better and more efficient system than that which some state court judges have adopted. If the state court does not require it, counsel should not be afraid to request a briefing schedule after filing a motion for summary judgment. Often the court will comply with the request, particularly if opposing counsel agree to it.

Opposing a Motion for Summary Judgment
It can be a relatively simple process to oppose a motion for summary judgment in smaller matters proceeding in state court, often requiring just the filing of an affidavit or some relevant deposition testimony. However, even in small cases, counsel would be well advised to file a memorandum of law in opposition.

One timeworn tactic for opposing summary judgment is actually the reverse of the advice given here regarding filing a motion for summary judgment—that is, make the opposition filing as long as possible. Sometimes the court sees through this tactic, but some judges make it clear that if the case is too complicated or intricate, summary judgment will not be granted.

Conclusion
In Florida, state court judges are sometimes reluctant to grant summary judgment and will do so in only the clearest of cases. The federal courts, however, with their increasingly overloaded dockets and pressures to reduce their caseloads, may be more willing to summary out nonmeritorious claims. While lawyers who are passionate about their work look for opportunities to try cases, the plain fact is that it is likely that there are too many cases clogging the court system. If counsel were more diligent about summary judgment, many trials could be shortened or eliminated altogether. Summary judgment is therefore a vehicle that should be carefully analyzed in each case, particularly given that most clients would prefer to have their cases adjudicated summarily rather than fund a full-scale trial.

    Authors